The Myth of the European Court of Human Rights' "War on Britain" - Spectator Blogs

Tory backbenchers wanted to talk as much about Strasbourg as they did about Jordan following Theresa May's statement on Abu Qatada today. Picture: Getty

You rarely hear people defending the European Court of Human Rights. It is, according to British mythology, a meddlesome beast populated by dimwit judges of dubious foreign provenance whose rulings are invariably ninnyish, ignorant and intolerable in equal measure.

I prefer to think of the court as the last protector of individual rights often threatened by hostile governments. Sometimes that hostile government is our own. The court – and really this cannot be stressed often enough – offers protection from the state. Restraining government’s worst instincts is a noble calling and if our judges cannot or will not do it then praise be that the european justices are not so feeble-minded.

As for the charge the European court is unelected and unaccountable. Well, lo, that’s rather the point of an independent judicial process. This is a strength, not a weakness.

The latest outrage [sic] is that the court in Strasbourg has suggested detaining prisoners indefinitely while denying them any means of demonstrating they may have been successfully rehabilitated and thus no longer constitute a threat to society is not quite on. If this were a Russian case everyone would agree the court’s verdict is the correct one. But since it’s an English case we’re supposed to consider this slap a dreadful invasion of Brittanic sovereignty.

Hooey. The use of indeterminate – that is, indefinite – sentences was a Labour ploy mercifully scrapped by this government. Like many of the coalition’s better moments this is something the government prefers to hide. Chris Grayling, the new Justice Secretary and Lord Chancellor, told MPs the government intends to appeal the court’s decision. Presumably this is because the government does not relish paying compensation to prisoners presently incarcerated beyond their tariff and with little or no means of demonstrating their fitness for release. One can sympathise with the government here (think of the headlines!) but the better response would be to avoid leaving itself open to these kinds of challenge in the first place.

As for the court’s ballyhooed “War on British Justice” well, that too, is a creature of fevered imagination. Andrew Tickell puts it well:

A quick look at the institution’s official figures illuminates all this for moonshine and fantasy. As I outlined back at the beginning of the year, claims that the Court is engaged in a hyperactive, hostile review of UK laws conveniently ignores the fact that 97% of applications made against the United Kingdom are rejected as inadmissible, the vast majority without being communicated to the state for any sort of response. To put it another way, whether ministers are conscious of them or not, and although they will never enter the annals of the law reports, or appear on HUDOC, the UK government “wins” the vast, vast majority of cases lodged against it.

Moreover, even when the court does consider there is a case to answer it turns out that Britain’s legal systems are more robust than you might think were you to base your estimate of the court’s ‘interference’ on newspaper reporting alone.

The court’s remit extends to some 47 countries. Only four – the Netherlands, Sweden, Andorra and Denmark - “win” cases at Strasbourg more frequently than the United Kingdom. Again, Mr Tickell has the details:

[B]etween 1959 and 2011, the Court handed down some 14,875 judgments, of which 12,425 found that at least one violation of the Convention had occurred: that’s 83.53% of all judgments given. The United Kingdom, by comparison, achieved a much more favourable level of success in its litigation. During the same period, the Court has made 462 judgments respecting the UK, of which 279 made at least one finding that the Convention had been violated: only 60.39% of judgments against the UK were adverse. Forty-two of the current forty seven member states lose a higher percentage of cases, from Ireland’s 62.96% upwards.

Of course, percentages can be misleading. For example [...] Monaco, Montenegro and Liechtenstein have the highest rate of adverse judgments by the Court, with every case (100%) going against their governments. What this doesn’t show, however, is that the body of litigation generated by these three states is tiny – between them, they’ve generated only fourteen judgments in total. However, the same cannot be said for the litigation against Germany (234 judgements, 67.95% adverse), France (848, 73.94%), Italy (2,166, 76.22%), or Russia (1,212, 94.06%), all of which enjoy an (often substantially) higher rate of defeat in Strasbourg proceedings than the UK’s comparatively modest 60.39%.

By international standards, then, Britain’s legal systems stand up to greater scrutiny than those of our European peers. This is good! But it hardly means our laws are perfect or should somehow be protected from further scrutiny.

Finally, those conservatives – and, alas, it is mainly conservatives – who wish to see Britain withdraw from the court or call for the United Kingdom government to unilaterally ignore its rulings should at least have the goodness to contemplate what kind of example this would set. It is already difficult enough to persuade countries such as Russia or the Ukraine to respect human rights and the rule of law without giving them fresh cause to ignore the court’s rulings. If Britain – Britain! – does not feel bound by the ECHR then why in god’s name should anyone else consider themselves restrained by its judgements?

Even if you believe the UK would benefit from ignoring Strasbourg you should at least consider the costs and consequences of doing so. Mild inconvenience – often sensible and justified, mind you – to the UK is a small thing when weighed beside the protections the court at least tries to afford peoples in less fortunate countries in which the rule of law is less established. I appreciate that this brand of internationalist liberalism is a tough sell but that doesn’t diminish its decency or its importance.

In any case, the record – compiled over more than half a century – suggests Strasbourg has a comparatively high opinion of British justice. It’s war on Britain is a myth albeit one that, to the extent it does exist, generally shows the court in a better light than our own dear government and state.

In contrast to just about everybody else in this forum, I feel Alan has got it exactly 100 per cent spot on. There is a very clear – if subtle – campaign on the part of two or three tabloid newspapers, egged on by a hard cord of right-wing Conservative MPs, to – quite frankly – MISLEAD the British public about what this Court does, and why it is there, for narrowly political reasons. The “myth” is peddled relentlessly and maliciously. Thanks to you, and Andrew Tickell, for not letting them get away with it.

http://twitter.com/mackydee1977 Macky Dee

So
Alex Massie, You like the IDEA of a European Court being above a UK Court (i cannot dis-agree with you more). But it is the quality of judgements, you see, there are things that would never get through the process in Britain but do in Strasbourg, as Robert says below, the figures do not put into context the barmy reasons people take the UK (and other countries) to Court. Also, my other comment explains the quality of rulings. But hey, you’d probably say, “well, we need to be at the table to get our voice heard if ever we wanted to change anything” old argument. Get Britain out of this barmy politicised beuraucratic mess, just like the EU as a whole – it is not run in the best interests of any peoples.

http://twitter.com/mackydee1977 Macky Dee

…”only 60.39% of judgments against the UK were adverse”…
So only nearly two thirds of all cases then (wow what a success rate (for the Court)).

What about the experience of ECHR Judges then…
President of ECHR, Sir Nicolas Bratza, giving evidence at the Joint Committee on Human Rights, admitted barely half of the court’s judges had any judicial experience before arriving in Strasbourg. Sir Nicolas is a British lawyer of Serbian descent whose own judicial experience was limited to a brief stint as a crown court recorder.He said many judges came from ‘mixed backgrounds’ but added that some of the court’s best judges were former academics who had been parachuted into the role… http://goo.gl/Dl4VC

anyfool

All this beating about the bush with your dodgy figures matter not one jot, most people in the UK don’t want anyone sitting in judgement on them, we are a civilisation hundreds of years old and hardly need people from anywhere else doing what MPs and our own judges should be doing.
The establishment in this country want to keep the ECHR so they can push policies which the majority of voters would not countenance like immigration, then wash their hands saying they can do nothing.
They are assisted by people like you Mr Massie and your fellow journalists who fail to do what your job entails which is to report evenhandedly and not push your own agenda with dodgy figures and blatant twisting of facts. you need to refresh your media studies diploma or examine why you become a member of the fourth estate.

http://www.facebook.com/rfmcdonald Randy McDonald

“we are a civilisation hundreds of years old and hardly need people from
anywhere else doing what MPs and our own judges should be doing.”

How funny, then, that the European Court of Human Rights was founded in 1959 by a Council of Europe that the United Kingdom was a founding member of (Britain was a democracy in 1949, right?).

The ECHR is doing what British MPs, and British judges, are evidently not doing. Should it therefore not be done?

anyfool

If you cannot look after your own justice system there is no point in being a country, outsourcing your legal and political power makes you an area not a sovereign country and you do not need to be a little Englander to realise that.

John P

If the facts have been “twisted” and the figures are “dodgy”, could you present the truth for me please? I am fascinated to hear.

Robert

Counting all the cases that are declared inadmissible by the ECtHR gives a seriously misleading impression about the success rate of the UK in cases brought against it at the Strasbourg Court. This is because many of these cases are likely to be completely meritless, even under Strasbourg jurisprudence. To my knowledge, there are no official figures giving a detailed breakdown of why cases are declared inadmissible by the ECtHR; however, as an official from the Court has blogged(http://ukhumanrightsblog.com/2012/01/24/is-strasbourg-obsessively-interventionist-a-view-from-the-court-paul-harvey/), these cases include those brought by applicants “who are delusional and make outlandish allegations against State bodies or private persons”. Russia often ignores ECtHR judgements. It seems ridiculous for the UK to submit itself to the often absurd and/or unjust judgements of the Strasbourg Court on the basis that the Court is sorting Russia out. It isn’t, and probably never will.

Duke

“Unelected”? But the judges of the ECHR *are* elected, by the Parliamentary Assembly of the Council of Europe; a collection of 321 Parliamentarians from the various countries involved, of which 18 (the joint largest number) are UK MPs and Lords. That makes the ECHR judges more “elected” than our own judges (and, arguably, most of the Cabinet). Strangely enough people tend to forget this when discussing the ECHR. Still, being semi-elected doesn’t stop them from being (mostly) foreign, which seems to be the main objection conservatives have against them…

creggancowboy

UK still has not implemented Marper – 2 million innocent folks DNA samples illegally held on file.

gladiolys

If they’d only remove the word “European” from their title, I’m sure the naysayers who complain about the ECHR would find their judgements much more acceptable.

Pronghorn

It should be up to the citizens of the UK, through their government, to organize their penal system. If criminals are being held beyond the end of their sentences, let the UK government and courts sort it out.

Daniel Maris

Russia comes under the Court. Nuff said about your theory that it is somehow “protecting human rights”.

We don’t need another court to second guess our human rights. In fact, if anything, it just acts as a brake on effective reforms: “Well Minister, the European Court has yet to rule on this…”